Abacus: “Small Enough to Jail”

By March 1, 2018 Uncategorized

The film Abacus: Small Enough to Jail disturbed me in a number of ways.  As a Chinese American, it pained me to see immigrants like my own parents being prosecuted unfairly.  And as a former prosecutor turned defense counsel, it reminded me of the inequities inherent in our criminal justice system.

Nominated for an Oscar in the category of Best Documentary Feature, Abacus tells the story of the five-year battle fought by the Chinese American Sung family against the prosecution of their family owned bank in Chinatown, New York City.  In the aftermath of the financial crisis caused by mortgage defaults in 2008, this small family-owned community bank became the only bank in the United States which was criminally charged.  

That’s right.  The only one.  

The giant corporate banks that had cost Fannie Mae and taxpayers trillions of dollars in losses were not prosecuted.  But this one small family bank was prosecuted despite having one of the lowest mortgage failure rates in the country.

In one chilling scene, the film shows footage of how the Manhattan District Attorney’s Office staged a “perp walk” of bank employees – all Chinese American – shackled together in chains as they were paraded down the courthouse halls to their arraignment.  As one commentator noted, it is inconceivable that the District Attorney’s Office would have treated African American employees in such an insensitive manner.

The film strongly suggests that the Manhattan District Attorney chose this bank because he thought it was an easy target and played up the public relations campaign maximally.  Racism or what we prefer nowadays to call “racial insensitivity” almost certainly played a role in the selection of the bank for prosecution.  But beyond these obviously disturbing facts, the film also illustrates even more deeply buried corrupt influences within our criminal justice system, namely money and the concept of “othering.”

Money corrupts the process because prosecutors appear reluctant to take on incredibly wealthy corporations whose wealth spans continents.  Why else would so many of the giants of the finance industry regularly settle their cases for monetary fines, while smaller targets individuals and small business face jail time?  At its worst, this fact may reflect a bullying and predatory mindset showing that prosecutors, like anyone else, prefer to win and therefore pick targets that appear vulnerable.  Limited financial resources make a criminal defendant vulnerable.  

In my representation of numerous individuals and small businesses, time and time again the question of costs arises in mounting an effective defense.  The Sung family was courageous and skilled (two daughters and the father are lawyers) in taking on the government but they also reportedly spent $10 million dollars in their defense.  Those kinds of resources are simply not available to most people.

“Othering” is seldom spoken about in the world of high stakes prosecution of criminal and civil cases but it deserves careful thought.  Most white-collar prosecutors will one day leave the prosecutor’s office for lucrative corporate careers in which they will represent exactly the very same type of business entities they once prosecuted.  The executives of those behemoth corporations will look just like the prosecutors in ways beyond race.  They will share the bonds of prestigious high schools, colleges/universities, law schools, business schools and share the common goal of success in the corporate world.  Small wonder that prosecutions tend to treat non-corporate targets more harshly.  Whether those targets are racial/gender/sexual orientation minorities and/or small businesses removed from the worlds occupied by the giants of industry, those targets look different.  They are “others.”

Abacus: Small Enough to Jail is an inspiring film as it tells the story of the “others” who heroically fought back.  But all too often heroes emerge only from tragedies.

The author, Shan Wu, recently represented a high-profile defendant in the Russian influence investigation currently being conducted the Office of Special Counsel.